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244 Singapore Academy of Law Journal (2003) III Why the 3 rd party did not obtain security for the debt/Relationship between 3 rd party and the husband and/or wife 58 If the 3 rd party is a commercial institution and did not obtain security for the debt, then there is no reason why the court should put him in the position of a secured creditor, as he has not bothered to look after his own interests, in this regard. It is submitted that the court would be less reluctant to make the repayment order in respect of a 3 rd party who is an individual, and who seems to have given the loan for reasons of love and affection (for example, the 3 rd party is a close family member of either the husband and wife). This is because the 3 rd party individual could not have taken the same steps as a commercial creditor to protect his interests. IV V VI Hardship to the family if the repayment order is made Hardship to the 3 rd party if no repayment order is made Size of the debt 59 If there are sufficient matrimonial assets to discharge the debt as well as to divide between the parties, then the court would be less reluctant to make the repayment order VII Lack of full and frank disclosure 60 If the court holds that a party (who has incurred the debt) has refused to make full and frank disclosure, it may infer that he has sufficient assets from which to satisfy the debt, and therefore not be inclined to make the repayment order. As the court in Rayney v Spencer 49 had opined, “The underlying policy in the Charter is not to allow the husband to deprive the wife and children by diminishing his assets.” 61 Admittedly, the balancing exercise that the court has to undertake is a difficult one, as each case would turn on its own facts. It is also not possible to state with any precision the weight that is to be given to each factor. In this regard, it should be noted that Harman v Glencross, supra, was cited in Rayney v Spencer, supra, in the context of the court’s observation that: “The English courts’ attempts to balance the 49 [1995] 2 SLR 153
15 SAcLJ Matrimonial Assets and the 3 rd Party 245 claims of a wife against the claims of her husband’s creditors are not free from uncertainty.” (per KS Rajah J) 2.5 Jurisdiction of court hearing ancillary matters to deal with 3 rd party issues 62 In the light of the foregoing, it is submitted that: (1) The court dealing with the ancillary matters upon divorce, whether it is the High Court or the Family Court, also has the jurisdiction to deal with any 3 rd party issues which may arise in relation to the ancillary matters; and (2) The Family Court has the jurisdiction to deal with 3 rd party issues involving matrimonial assets or liabilities which are of a sum greater than $250,000 3 Filing a separate civil suit 63 Notwithstanding that the court dealing with the ancillary matters has the jurisdiction to deal with the 3 rd party issues, does the 3 rd party, or the husband, or the wife, still have the right to file a civil suit (in the High Court, District Court or Magistrate’s Court (“the ordinary civil court”) depending on the size of his claim) in respect of these issues after divorce proceedings have commenced 64 It is submitted that the 3 rd party should not be deprived of his right to file a civil suit in the ordinary civil court just because the party that he lent money to, or entered into a financial transaction with, is involved in divorce proceedings. This submission is also applicable to the husband and wife—i.e. that the husband and wife should not be deprived of their right to file a civil suit in respect of the 3 rd party issue in the ordinary civil court just because they happen to be involved in divorce proceedings at the time that they wish to file the civil suit. These arguments apply with particular force in the case of divorce petitions filed on or after 1 April 1996 and before 15 December 2003, where, as a result of the Transfer Order, the ancillary matters proceedings will be heard by the Family Court, no matter what the monetary value of the assets or liabilities involved, but a civil suit which is filed in respect of the 3 rd party issue involving assets (or liabilities) of a sum more than $250,000 would have to be commenced in the High Court. (The same arguments would apply in respect of divorce petitions filed on or after 15 December 2003, where, as a result of the Second Transfer Order, all ancillary matters proceedings will be heard by the Family Court, unless
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